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NAVY | DRB | 2006_Navy | ND0600156
Original file (ND0600156.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-ENFR, USN
Docket No. ND06-00156

Applicant’s Request
The application for discharge review was received on 20051101 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed . The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20060926 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct .








PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the attached document/letter:
“ To whom it may concern:

 I, I_ G_, Jr., (Applicant) am requesting an upgrade on my discharge. I have been separated from the military for over 3 yrs, and I believe I des erve a second chance at life. I was 17 yrs old when I enlisted in the US NAVY, and was discharged at the age of 19. I made the mistake of allowing drugs and alcohol to affect the future of my career. As a direct result of that bad decision, I was discharged under Other Than Honorable Conditions. Currently, I am a resident at the People Coordinate Services Castle West Drug and Alcohol program and have completed 145 days. One of my goals is to complete their program and enroll in a University, so I can continue my education. This in turn would help me in my plans for the future, which include becoming gainfully employed so I can be the father to my son that I should be, as well as being a productive member of society.

 In conclusion, I believe this upgrade is extremely important to me, and that it will give me a fresh start at life.

 Thank you for your time and the consideration of this important matter.
Sincerely,
[signed]
 I _ G_, Jr. ( Applicant) ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Letter from B_ F. R_, Jr., Recovery Specialist, People Coordinated Services of Southern California, Inc, dtd October 20, 2005 (2 pgs)
Discharge Information L t r from Department of Veterans Affairs, dtd November 23, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000419 - 20000816       COG
          Active: None

Period of Service Under Review :
Date of Enlistment: 20000817              Date of Discharge: 20011214

Length of Service (years, months, days):

          Active: 0 1 0 3 2 9 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 41 day s
         Confinement:              none

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 4

Education Level: 1 2                                  AFQT: 37

Highest Rate: ENFR

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2 .0 ( 2 )              Behavior: 2 .0 ( 2 )                 OTA: 2 . 25

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None.


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

010921:  Applicant’s consent for urinalysis.

 011002:  Applicant to unauthorized absence at 0600 on 011002.
011009:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 011001, tested positive for THC.
0 11112 :  Applicant from unauthorized absence at 1900 on 0 11112 ( 41 days/surrendered).
0 11115 :  NJP for violation of UCMJ, Article 85 : Desertion .
 Violation of UCMJ, Article 92 : Failure to obey other lawful order .
         Award: Forfeiture of $ 521.4 0 per month for 2 month s (suspended for 6 months) , restriction and extra duty for 45 days, reduction to E- 1 . No indication of appeal in the record.
011115:  Retention Warning: Advised of deficiency (Applicant’s NJP on this for VUCMJ. Article 85-Desertion (41 days) and Article 92 –Failure to obey other lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
011127:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (marijuana).
         Award: Restriction to the limits of the ship for 45 days, extra duties x 45 days, forfeiture of $521.40 pay per month for 2 months, reduction to E-1 (TIR effected). No indication of appeal in the record.
0 1120 5 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct pattern of misconduct and misconduct drug abuse.

01120 5 :  Applicant advised of rights and having elected not to consult with counsel elected to waive all rights .

0 11206 :  Commanding Officer, USS TARAWA (LHA 1) recommended discharge under other than honorable conditions by reason of misconduct, due to drug abuse, as evidenced by a nonjudicial punishment hearing on 27 November 2001, for violation of the UCMJ, Article 112(a), use of a controlled substance (marijuana) and by reason of misconduct, due to a pattern of misconduct, as evidenced by nonjudicial punishments hearings on 27 November 2001 and 15 November 2001, during member’s current enlistment . Commanding Officer’s comments : “ Upon returning from forty-one days of unauthorized absence, ENFR G_ (Applicant) consented to a urine specimen which tested positive for the presence of marijuana, a controlled substance. At a Commanding Officer’s nonjudicial punishment hearing conducted on 27 November 2001, ENFR G_ (Applicant) was found guilty of UCMJ, Article 112a, wrongful use of a controlled substance. The finding of guilt was based upon a preponderance of the evidence submitted.
 ENFR G_ (Applicant) was aware of the Navy’s policy on the use of controlled substances. Such behavior is considered to be a significant departure from the minimum standards of conduct expected of all members of the naval service. ENFR G_ (Applicant) knew of the consequences of his actions and that he would be held accountable. ENFR G_ (Applicant) has no potential for further naval service and I strongly recommend his immediate separation with an Other Than Honorable characterization of service. ”
011210 :  GCMCA, COMPHIGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct pattern of misconduct.

011214:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20011214 by reason of misconduct due to a pattern of misconduct (A ) with a service characterization of under other than honorable conditions. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable ( B and C ).

The Applicant implies that his discharge was inequitable because of his youth and immaturity at the time of service. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. Most servicemembers begin their service at a relatively young age. It must be noted that despite their relative youth and immaturity, the vast majority of these members of the Navy still serve honorably and therefore earn their honorable discharges. In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The Applicant’s record is marred by:
•         Non-judicial punishment proceedings on 20011115 for violation of UCMJ Article 85 Desertion and Article 92 Failure to obey other lawful order;
•         Retention warning entry on 20011115 for deficiencies in performance and conduct concerning NJP for violation of Articles 85 and 92; and
•         Non-judicial punishment proceedings on 20011127 for violation of UCMJ Article 112a Wrongful use of controlled substances (marijuana).
 The Applicant’s conduct, which forms the primary basis for determining the character of service, falls well below that required for an honorable characterization of service. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The Applicant requests a Narrative Reason for Separation change. Under its responsibility to examine the propriety and equity of the Applicant's discharge, the NDRB will change the reason for discharge if such a change is warranted. The summary of service clearly documents that a pattern of misconduct was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Therefore changing the Narrative Reason for Separation to would be inappropriate. Relief on this basis is denied.

The Applicant is advised that there is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

While there is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving service, the Board is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant submitted a letter concerning his participation in a substance abuse program. The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. And so, no relief is granted on this basis.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support post-service accomplishments or any other evidence related to the discharge at that time. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil ” .
The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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